Laborers Local 324 (AGC of California)

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 589 (N.L.R.B. 1995)

589
318 NLRB No. 66
LABORERS LOCAL 324 (AGC OF CALIFORNIA)
1 In its exceptions, the Respondent argues for the first time that
the complaint is barred by 10(b) and by ‘‘General Counsel’s lach-
es.’’ The Respondent, however, has waived these affirmative de-
fenses by failing to plead or litigate them at the hearing. See Chris-
topher Street Corp., 286 NLRB 253 (1987). Moreover, there is no
merit to these contentions. The charge was filed well within the pe-
riod prescribed by Sec. 10(b), and there is no basis for the applica-
tion of laches to the General Counsel’s prosecution of the charge.
Hawaiian Flour Mill, 274 NLRB 1108 fn. 2 (1985), enfd. 792 F.2d
1459 (9th Cir. 1986).
2 The Respondent has maintained three hiring halls, located in
Pittsburg, Martinez, and Richmond, California. While he has been a
member of the Respondent, Murray has obtained work through all
three hiring halls. Although Murray has distributed his newsletter at
all three halls, the events at issue occurred only at the Martinez hir-
ing hall.
Laborers’ Union Local No. 324, Laborers’ Inter-
national Union of North America, AFL–CIO
(Associated General Contractors of California,
Inc., Lawson Mechanical Contractors) and
Douglas Murray. Case 32–CB–3253
August 25, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
On January 30, 1991, Administrative Law Judge
Gerald A. Wachnov issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions1 and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
The judge found that the Respondent violated Sec-
tion 8(b)(1)(A) of the Act by adopting and maintaining
a no-solicitation/no-distribution rule designed to pre-
clude the distribution of dissident union material, by
threatening to have Douglas Murray arrested and re-
moved from the hiring hall in order to prevent him
from distributing dissident union material, and by
threatening to have him arrested if he continued to dis-
seminate such material outside the hiring hall. The Re-
spondent excepts, contending, inter alia, that Murray’s
conduct is not protected by Section 7, that the rule
served a legitimate union purpose, and that the Board
cannot find a violation in the absence of internal union
discipline. For the reasons set forth below, we find no
merit in the Respondent’s contentions.
Douglas Murray is an active member of the Re-
spondent Union, a vocal critic of the local union lead-
ership, and, recently, an unsuccessful candidate for
union office. During this time, Murray edited and pub-
lished a newsletter containing articles on labor-related
matters in general, as well as articles criticizing the
practices and procedures of the Respondent. Specifi-
cally, the newsletters contained articles critical of the
Respondent’s elected and appointed officials and rep-
resentatives, including allegations that the union offi-
cers and representatives receive salaries, allowances,
and expenses far in excess of their value to the Union;
that the Respondent’s leaders waste members’ money
on expensive meals and trips, disregard parliamentary
procedure when it suits their purposes, and negotiate
sweetheart contracts; and that the Respondent permits
employers to disregard their contractual commitments
and allows dishonest hiring hall procedures. In each
issue, Murray also urges members to attend union
meetings in order to remedy the wrongs specified in
the newsletters. Since 1988, Murray has distributed
copies of the newsletter at the Respondent’s hiring
hall.2
On June 23, 1989, the Respondent called the police
and asked that Murray be removed from the hiring hall
because he was passing out literature. After the Re-
spondent’s business manager and secretary treasurer
admitted that there was no union rule prohibiting the
distribution of literature, the police left. Subsequently,
at a union meeting on June 27, a no-solicitation/no-dis-
tribution rule was adopted, which states: ‘‘During op-
erating hours the offices and halls of Local 324 are to
be used only for legitimate union business. No person
is permitted to use these premises for solicitation for
any cause nor for distribution of literature.’’ This rule
was posted at each of Respondent’s hiring halls. Im-
mediately after the meeting, the Respondent’s business
agent told Murray that ‘‘the next time you hand out lit-
erature you’re gonna be arrested.’’ On August 2, while
Murray was distributing literature in the hiring hall
parking lot, the Respondent’s business agent told Mur-
ray that he was going to call the police if Murray did
not leave.
In adopting the judge’s finding that the Respondent
violated Section 8(b)(1)(A) by enacting the new rule
and by threatening Murray with its enforcement, we
note first that Murray’s conduct was protected by Sec-
tion 7 of the Act. The Board has long held that Section
7 guarantees employees the right to criticize their bar-
gaining representative or to persuade others to take
such steps as they deem necessary to align their union
with their position, and that a union violates Section
8(b)(1)(A) when it restrains or coerces employees in
the exercise of that right. East Texas Motor Freight,
262 NLRB 868, 871 (1982) (citing Nu-Car Carriers,
88 NLRB 75 (1950), enfd. 189 F.2d 756 (3d Cir.
1951), cert. denied 342 U.S. 919 (1952), and Roadway
Express, 108 NLRB 874 (1954), enfd. sub nom. Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 823, 227
F.2d 439 (10th Cir. 1955)). Thus, by adopting a no-
solicitation/no-distribution rule for the sole purpose of
prohibiting Murray from disseminating dissident lit-
erature in which he protested the decisions of the Re-
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967).
4 Our dissenting colleagues’ opinion is dependent on their charac-
terization and analysis of the no-solicitation/no-distribution rule as
separate from and unrelated to the threats of arrest. In fact, the rule
was the result of one unlawful threat and the basis for two more.
Accordingly, we view the rule not as a discrete act but as part of
the continuum of unlawful acts by the Respondent. Further, the dis-
sent’s suggestion that Murray had other means available to make his
message known to the Respondent’s membership ignores that Mur-
ray ran the risk of arrest wherever he distributed his literature, both
inside and outside the hiring hall.
5 Carpenters Local 22 (Graziano Construction), 195 NLRB 1
(1972).
6 Scofield, 394 U.S. at 430.
7 Graziano, 195 NLRB at 2. Although the policies of the Labor-
Management Reporting and Disclosure Act (LMRDA) are implicated
in this case under the Scofield test, the violation is found under Sec,
8(b)(1)(A) of the NLRA. Thus, Breininger v. Sheet Metal Workers
Local 6, 493 U.S. 67 (1989), cited by the Respondent, is not appo-
site, for it involved the issue of whether there was a violation under
the LMRDA. Further, because we find that the basis for the viola-
tion is the Act, we also reject the Respondent’s contention that the
Board should defer to the United States District Court proceeding al-
leging a violation of the LMRDA for the identical conduct.
spondent’s officers, criticized their actions, and urged
other members to do the same, the Respondent re-
strained and coerced him in the exercise of what the
Board has long recognized as Section 7 rights.
The mere fact that a union acts in response to the
exercise of a Section 7 right however, does not nec-
essarily mean that the action is unlawful.3 Unions are
afforded wide latitude in promulgating rules governing
their internal affairs. In Scofield v. NLRB, 394 U.S.
423 (1969), the Supreme Court articulated the test for
evaluating the lawfulness of a union rule and its en-
forcement. In upholding a union’s practice of fining its
members who violated a ban on employees’ receiving
immediate payment for production in excess of a
union-imposed ceiling, the Court stated that ‘‘Section
8(b)(1)(A) leaves a union free to enforce a properly
adopted rule that reflects a legitimate union interest,
impairs no policy Congress has imbedded in the labor
laws, and is reasonably enforced against members who
are free to leave the union and escape the rule.’’ 394
U.S. at 430.
Contrary to the contention of our dissenting col-
leagues, we find that the rule in the instant case fails
to satisfy the first two prongs of the Scofield test. First,
the Respondent has not shown that the rule reflects a
legitimate union interest. The record belies our dissent-
ing colleagues’ contention that the rule was adopted as
necessary for the operation of a fair and reasonably ef-
ficient hiring hall. There is no evidence that Murray’s
distribution of literature unduly disrupted meetings or
interfered with referrals from the hall. Rather, the
record indicates that the Respondent’s sole motivation
for adoption of the rule was to silence Murray. In this
regard, the Respondent’s business agent testified that
members ‘‘got tired’’ of Murray’s distributions and
were annoyed with Murray’s continued dissemination
of material critical of the Union leadership following
the election. The Respondent’s business agent admitted
that the rule was enacted to stop these distributions.
Further, the Respondent adopted the rule only after its
initial attempt to silence Murray was frustrated when
police declined to arrest him in the absence of a rule.
Finally, the Respondent’s threat to call the police when
Murray tried to continue his distribution outside the
hiring hall clearly reveals that the rule was not de-
signed to improve the operation of the hiring hall.4
Second, the Respondent’s no-solicitation/no-distribu-
tion rule was aimed at stifling the kind of free speech
that Congress sought to protect under the Labor-Man-
agement Reporting and Disclosure Act (LMRDA).5
Thus, the rule ‘‘impairs [a] policy Congress has
imbedded in the labor laws. . . .’’6 For these reasons,
we find that the Respondent’s no-solicitation/no-dis-
tribution rule and its enforcement fail to meet the Sco-
field test and are unlawful under Section 8(b)(1)(A).7
Similarly, we find no merit in the contention of our
dissenting colleagues that the Board’s inquiry under
Scofield is limited to evaluating the lawfulness of inter-
nal union discipline employed to enforce a rule and
that, in the absence of such internal discipline, the
Board lacks the authority to determine the propriety of
the rule.
Although the Respondent did not subject Murray to
any formal internal union disciplinary action or threat-
en to do so, the Respondent threatened Murray with
arrest for disregarding the rule. In fact, the rule was
adopted because the police would not effect an arrest
in the absence of a rule. We find no logical or legal
basis for distinguishing between the threat of internal
union discipline for exercising a protected right and the
threat of arrest. The result in either case is coercion.
Here, the clear message to Murray was that disobe-
dience of the rule would result in the Respondent’s
causing his arrest. Further, the maintenance of the rule,
coupled with the explicit and repeated threats of arrest
for disregarding it, forced Murray to choose between
risking arrest by continuing to distribute the literature
and losing his Section 7 right to distribute dissident
material critical of the Respondent. The Act does not
require Murray to make such a choice.
Finally, even if the Respondent were not using the
rule to threaten Murray with arrest, we agree with the
judge that the mere maintenance of a rule that impairs
Section 7 rights violates the Act when it was clearly
adopted for retaliatory purposes. Such an unlawfully
motivated rule will itself deter the employee whose
protected actions gave rise to the rule. That employee
can reasonably assume that breach of the rule will not
go unpunished. Our dissenting colleagues would re-
quire the employee to suffer the sanction before ob-
591LABORERS LOCAL 324 (AGC OF CALIFORNIA)
8 NLRB v. Marine & Shipbuilding Workers, 391 U.S. 418 (1968);
Laborers Northern California Council (Baker Co.), 275 NLRB 278,
290 (1985), and cases cited therein.
Contrary to the suggestion of our dissenting colleagues, we do not
hold that every improperly motivated act gives rise to a violation.
We deal only with the facts of this case, where the evidence of mo-
tive establishes that the Scofield test has not been met.
9 Contrary to our dissenting colleagues, we find that the Supreme
Court’s decision in NLRB v. Boeing Co., 412 U.S. 67 (1973), en-
dorses our application of the Scofield test in this case. As the Court
stated in Boeing, it is the Board’s determination that ‘‘union dis-
cipline does not interfere with the employee-employer relationship or
otherwise violate a policy of the National Labor Relations Act,’’ that
forecloses the Board’s evaluation of the reasonableness of a fine im-
posed by a union or a union’s motivation for imposing a fine. Id.
at 78 (emphasis added). As discussed above, the record indicates that
the Respondent’s rule clearly violates a policy of the Act, and thus
our colleagues’ reliance on the court’s decision in Boeing is mis-
placed.
Boeing is best understood in light of its forebear, NLRB v. Allis-
Chalmers, 388 U.S. 175 (1967). Allis-Chalmers held that a union did
not offend national labor policy by fining a member who crossed the
union’s lawful picket line. Given the legality of the fine, the Court
in Boeing simply held that the Board was not free to regulate the
amount of the fine. Neither of those cases however, is relevant to
the instant case where the conduct does offend national labor policy.
10 In adopting the judge’s finding that the Respondent violated
Sec. 8(b)(1)(A), Members Stephens and Cohen find it unnecessary
to rely on the judge’s discussion of Helton v. NLRB, 656 F.2d 883
(D.C. Cir. 1981). Moreover, the facts of the underlying Board case,
Teamsters Local 515 (Roadway Express), 248 NLRB 83 (1980),
cited by the Respondent, are distinguishable. In that case, the Board
dismissed 8(b)(1)(A) allegations against the union for removing a
dissident member’s literature from the union’s bulletin board in the
employee break room at the employer’s facility. The Board thus con-
cluded that the union did not ‘‘discipline’’ or ‘‘threaten’’ the em-
ployee, and the union’s actions were ‘‘completely devoid of any im-
plications of retribution.’’ The Respondent’s actions here are not so
benign. With an admitted retaliatory motive, the Respondent adopted
a rule denying Murray access to its offices and hiring halls during
business hours for the purposes of solicitation and distribution and
threatened to have him arrested if he violated the rule. Further, act-
ing beyond the scope of the rule, the Respondent threatened to call
the police if Murray continued to distribute his materials in the park-
ing lot.
1 Scofield v. NLRB, 394 U.S. 423, 429 (1969); Carpenters Local
22 (Graziano Construction) 195 NLRB 1, 2 (1972).
2 Sec. 101(a)(2) of the LMRDA provides:
Freedom of speech and assembly. —Every member of any
labor organization shall have the right to meet and assemble
freely with other members; and to express any views, arguments,
or opinions; and to express at meetings of the labor organization
his views, upon candidates in an election of the labor organiza-
tion or upon any business properly before the meeting, subject
to the organization’s established and reasonable rules pertaining
to the conduct of meetings: Provided, that nothing herein shall
be construed to impair the right of a labor organization to adopt
and enforce reasonable rules as to the responsibility of every
member toward the organization as an institution and to his re-
fraining from conduct that would interfere with its performance
of its legal or contractual obligations.
3 The judge did not find that the rule was facially unlawful. See
JD at 12–13. Further, the rule here is distinguishable from rules re-
stricting members’ right to resign from a union, such as the rule in
Engineers & Scientists Guild (Lockheed-California), 268 NLRB 311
(1983), which have been found to be facially coercive. See Pattern
Makers League v. NLRB, 473 U.S. 95 (1985).
taining the Board’s remedial protection. We would not
require the employee to run that gauntlet.
Our dissenting colleagues contend that motive is ir-
relevant in assessing the legality of the union’s con-
duct here. We disagree. As noted above, one prong of
the Scofield test is whether the union’s conduct impairs
a policy that Congress has imbedded in the labor laws.
In determining whether conduct impairs the national
labor policy, the Board is free to examine, inter alia,
the union’s motive for engaging in that conduct. For
example, when a union disciplines an employee in re-
taliation for filing a charge with the Board, such un-
lawfully motivated conduct offends national labor pol-
icy and is unlawful.8
Although the dissent argues that the Respondent’s
rule is facially lawful, the judge did not rule on this
issue and neither do we. The essential point is that the
Respondent promulgated and maintained the rule sole-
ly for the unlawful purpose of stifling Murray’s Sec-
tion 7 right to freely express his opposition to the Re-
spondent. We agree with the judge that the Respondent
is free to adopt and maintain a rule which prohibits
distribution of material in its hiring hall, so long as the
rule conforms to the guidelines set forth in Scofield.9
As discussed above, however, the evidence presented
in this case clearly demonstrates that the purpose of
the rule was to silence Murray.10
Accordingly, we refuse to permit the Respondent to
maintain an unlawfully promulgated rule and to threat-
en employees with its enforcement in violation of the
Section 7 rights of those employees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laborers’ Union Local No.
324, Laborers’ Union of North America, AFL–CIO, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Order.
MEMBERS BROWNING AND TRUESDALE, dissenting in
part.
We dissent from our colleagues’ finding that Local
324 violated Section 8(b)(1)(A) by enacting a no-
solicitation/no-distribution rule covering the operation
of its hiring hall in response to a member’s distribution
of materials there during business hours. The violation
is premised on the Board’s authority to prohibit union
enforcement of a rule that ‘‘invades or frustrates an
overriding policy of the labor laws’’1—here, the Sec-
tion 7 right to criticize the bargaining representative
and the ‘‘free speech’’ provisions of the Labor-Man-
agement Reporting and Disclosure Act.2 We believe
the holding that a union has violated Section
8(b)(1)(A) merely by passing a rule that is not facially
unlawful3 and relates to purely internal conduct is an
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We agree that Local 324 violated Sec. 8(b)(1)(A) when its agents
threatened Murray with arrest.
5 394 U.S. 423 supra, at fn. 1.
6 JD at 11 (emphasis added).
7 See fn. 2, supra.
8 656 F.2d 883 (D.C. Cir. 1981).
9 Scofield supra, 394 U.S. at 430 fn. 1.
10 Problems with the judge’s reasoning go further than his
misreading of Scofield. He concedes that Local 324 may prohibit so-
licitation and distribution during business hours—even through a rule
exactly like the rule at issue—as long as the rule is not aimed at
Murray. But is Murray, then, to be the only individual permitted to
solicit and distribute during business hours at the hiring hall, and is
he to be permitted to distribute materials on nonprotected subjects?
11 Graziano, supra 196 NLRB 1, 2, and fn. 1.
unprecedented and unjustifiable intrusion into union in-
ternal affairs, directly contradicts Board precedent, and
is inconsistent with Supreme Court precedent elucidat-
ing both the NLRA and the LMRDA. Therefore, we
dissent from our colleagues’ findings with respect to
the passing of the bylaw.4
Charging Party Murray is an active union member,
critic of Local 324 leadership, and, at the time of the
hearing, a recently defeated candidate for union office.
He publishes a newsletter and has used Local 324’s
meetings, parking lots, hallways, and hiring halls to
distribute the newsletter and other materials, many of
which have no relation to local union affairs. On June
23, 1989, Murray spread his materials out on one of
two tables available to employees awaiting job refer-
rals in the hiring hall. When a union business manager,
responding to the complaints of employees waiting for
referrals, told him to remove the materials and leave
the hall, Murray refused, stating that he would share
the table with other members who wished to use it. A
scuffle and irate words ensued, and Local 324 called
the police, who refused to remove Murray in the ab-
sence of a rule proscribing his activities. Local 324
passed such a rule, 4 days later. The rule reads:
During operating hours the offices and halls of
Local 324 are to be used only for legitimate
Union business. No person is permitted to use
these premises for solicitation for any cause nor
for distribution of literature.
After the rule was passed, a union business agent
told Murray that the next time he distributed his mate-
rials he would be arrested. Murray continued to distrib-
ute literature outside hiring halls and at union meet-
ings. On one occasion a business agent told him that
he would summon the police if Murray continued to
distribute literature in the facility’s parking lot. Murray
refused to leave, nothing more was said, and Murray
has continued to distribute his materials.
In finding that Local 324 violated Section 8(b)(1)(A)
by passing the rule, the judge reasoned that under Sco-
field v. NLRB,5 the Board is empowered to consider
‘‘the full panoply of congressional labor policies in de-
termining the legality of a union fine.’’6 The judge,
following the lead of the General Counsel in the com-
plaint, pointed to the LMRDA’s free speech provi-
sions7 as embodying the relevant congressional labor
policy reachable by the Board through Section
8(b)(1)(A). After citing cases finding that unions had
violated Section 8(b)(1)(A) by filing internal union
charges against, and ultimately fining, employees for
promulgating dissident views, the judge cited Helton v.
NLRB8 to support extending the rationale for such vio-
lations to the facts here. In its exceptions, Local 324
argues that the judge has interpreted Scofield too
broadly, and that Scofield authorizes the Board to
evaluate the lawfulness under Section 8(b)(1)(A) of a
union’s enforcement of internal rules, not to engage in
an examination of the rules themselves. The majority
rejects those arguments, and finds that the bylaw is not
a ‘‘properly adopted rule which reflects a legitimate
union interest.’’9 We disagree with our colleagues and
find merit in Local 324’s exceptions. We would dis-
miss the allegation that the union violated Section
8(b)(1)(A) by enacting the bylaw.10
In reaching this conclusion, we assume, without
needing to find, that the literature in question may in-
clude speech protected under Section 101(a)(2) of the
LMRDA. Further, we also assume that, when a union’s
imposition of internal discipline contravenes LMRDA
policies, the Board is empowered to find that the dis-
cipline violates Section 8(b)(1)(A).11 We part company
with the judge and our colleagues, however, in that we
find no evidence that Local 324 charged, tried, fined,
suspended, or expelled Murray, subjected him to any
other discipline, or threatened to do so, and we would
distinguish this case from the Board cases cited by the
judge in this crucial respect. In our view, formal dis-
ciplinary action or the threat thereof is the sine qua
non of an 8(b)(1)(A) violation under Scofield. Thus,
we believe that the judge erred in finding that Scofield
supports a conclusion that Local 324 violated Section
8(b)(1)(A) by passing the bylaw, that our colleagues
have erred in holding that the Union violated Section
8(b)(1)(A) by passing a bylaw not shown to be facially
unlawful, and that, in so doing, our colleagues are
making new law.
As with any allegation that a union or other entity
has violated the labor laws, the threshold question is
whether the Board has the statutory authority to find
the conduct unlawful and to order that it be changed.
With respect to unions and their relations with rep-
resented employees, the relevant Board authority is set
forth in Section 8(b)(1); with respect to the choices a
union makes in handling its internal affairs, that au-
thority is, according to Congress and the Supreme
Court, extremely limited.
Section 8(b)(1)(A) proscribes conduct that restrains
or coerces employees in their exercise of Section 7
593LABORERS LOCAL 324 (AGC OF CALIFORNIA)
12 Id. at 194 (citations omitted).
13 394 U.S. 423, at 429 (emphasis added).
14 394 U.S. at 430.
15 412 U.S. 67 (1973).
16 ‘‘While ‘unreasonable’ fines may be more coercive than ‘rea-
sonable’ fines, all fines are coercive to a greater or lesser degree.’’
Id. at 72–73.
rights, subject to the proviso that ‘‘this paragraph shall
not impair the right of a labor organization to prescribe
its own rules with respect to the acquisition or reten-
tion of membership therein.’’ Section 8(b)(1)(A) was
proposed as an amendment to Section 8(b) by Senator
Ball after the Senate bill reached the floor, with the
express purpose of ‘‘free[ing employees] from the co-
ercion of goon squads and other strong arm organizing
techniques which a few unions use today.’’ 2 Leg.
Hist. at 1525 (LMRA (1947)). In urging the addition
of 8(b)(1)(A), Ball stressed that the provision was in-
tended to reach, e.g., threats of violence, mass picket-
ing, economic reprisals, or false promises. He ampli-
fied: ‘‘the commonplace in organization campaigns is
for the business agent to threaten all employees and
tell them that if they do not join the union . . . or vote
for it they will be charged double initiation fees after-
ward.’’ Id. at 1019. He cited individuals who, or
whose employees, were ‘‘threatened, jostled, or beaten,
whose shops were picketed, who were the targets of
verbal abuse’’ without any recourse, because the
unions’ actions fell outside state law. Id. at 1018–1021.
Floor debate on Section 8(b)(1)(A) repeatedly re-
turned to the fact that its limited underlying purpose
would not interfere with union self-government or
management of internal union affairs. ‘‘The note re-
peatedly sounded is as to the necessity to protect indi-
vidual workers from union organizational tactics tinged
with violence, duress, or reprisal.’’ NLRB v. Drivers
Local Union, 362 NLRB 274, 286 (1959). Senator Ball
explicitly stated that ‘‘it was never the intention of the
sponsors of the pending amendment to interfere with
the internal affairs or organization of unions.’’ NLRB
v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 187 (1967),
citing 2 Leg. Hist. at 1141 (1947), (emphasis in origi-
nal). It was against this background that Congress con-
sidered and adopted Section 8(b)(1)(A). Significantly,
Section 8(b)(1)(A) contains explicit language preserv-
ing the union right to self-governance through the pro-
viso exempting from the 8(b)(1)(A) prohibitions the
right to make rules as to membership.
In Allis-Chalmers, supra, the Supreme Court, in up-
holding a union’s right to fine members for crossing
picket lines, construed Section 8(b)(1) and its legisla-
tive history and concluded categorically that 8(b)(1)
does not empower the Board to call unions before it
on matters involving strictly internal conduct. The
Court further commented on the interplay between
union freedom from internal regulation and the rights
accorded employees by the Landrum-Griffin Act:
Even [as Congress considered measures to protect
employees as union members], some Senators em-
phasized that ‘‘in establishing and enforcing statu-
tory standards great care should be taken not to
undermine union self-government. . . .’’ Con-
gress expressly recognized that a union member
may be ‘‘fined, suspended, expelled, or otherwise
disciplined,’’ and enacted only procedural require-
ments . . . . Congress added a proviso to the
guarantee of freedom of speech and disclaiming
any intent ‘‘to impair the right of a labor organi-
zation to adopt and enforce reasonable rules as to
the responsibility of every member toward the or-
ganization as an institution.’’12
In Scofield, the Court distinguished again between
internal union discipline and discipline aimed at affect-
ing an employee’s employment status, noting that
Landrum-Griffin did not alter the interpretation of Sec-
tion 8(b)(1)(A) followed in Allis-Chalmers. The Court
also acknowledged that some union rules could frus-
trate the Act’s plain policies ‘‘and the union would
commit an unfair labor practice by fining or expelling
members who violated the rule.’’13 The Court noted,
however, that
[although the Board’s construction of [(Section
8(b)(1)(A))] emphasizes the sanction imposed
rather than the rule itself and does not involve the
Board in judging the fairness or wisdom of par-
ticular union rules, it has become clear that if the
rule invades or frustrates an overriding policy of
the labor laws the rule may not be enforced, even
by fine or expulsion, without violating 8(b)(1).
[Id. at 429, emphasis added.]
Thus, the Court held that under this ‘‘dual ap-
proach,’’ a union is ‘‘free to enforce a properly adopt-
ed rule which reflects a legitimate union interest, im-
pairs no policy Congress has imbedded in the labor
laws, and is reasonably enforced against union mem-
bers who are free to leave the union and escape the
rule.’’14
Scofield contains no hint that Section 8(b)(1)(A) em-
powers the Board to examine the content of a union
rule or the ‘‘motivation’’ for it when it is not facially
unlawful and no enforcement is alleged; the Court’s in-
quiry into the rule’s policy and purpose was premised
on the very fact that the rule was enforced against
members through fines. In NLRB v. Boeing Co.,15 the
Court clarified Scofield’s underlying premise, i.e., that
the alleged coercion that brought the union’s action
within the ambit of Section 8(b)(1)(A) was precisely
the fine involved.16 The Court stated in Boeing:
Section 8(b)(1)(A) of the Act provides . . . that
it shall be an unfair labor practice for a labor or-
ganization ‘‘to restrain or coerce (A) employees in
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Our colleagues interpret Boeing, supra, as supporting their in-
quiry into the motivation behind the Union’s passing of the bylaw
in the absence of discipline. The very language they cite, however,
demonstrates that their reliance is misplaced. In Boeing, the Court
upheld the Board’s determination that ‘‘when the union discipline
does not interfere with the employee-employer relationship or other-
wise violate a policy of the National Labor Relations Act,’’ Con-
gress had not authorized it to ‘‘evaluate the fairness of union dis-
cipline meted out to protect a legitimate union interest.’’ Id. at 78
(footnote omitted and emphasis added). Thus, the Court in Boeing,
as in Scofield, had as its subject of analysis one specific category
of union activity—the imposition of union discipline: in both cases
monetary fines and in Boeing, the further onus of debarment from
union office for 5 years. Nothing in the language cited by the major-
ity supports the proposition that Boeing authorizes the Board to go
beyond such discipline and delve into unenforced bylaws.
18 388 U.S. 175 at 185-186, cited in NLRB v. Boeing Co., supra,
412 U.S. 67, 72–73; Scofield v. NLRB, supra, 394 U.S. 423, 428
(‘‘Congress did not propose any limitations with respect to the inter-
nal affairs of unions, aside from barring enforcement of a union’s
internal regulations to affect a member’s employment status.’’). See
also NLRB v. Food & Commercial Workers Local 1182 (Seattle-
First National Bank), 475 U. S. 192 fn. 11 (1986). (Congress has
been guided by general principle that unions should be free to oper-
ate own affairs).
19 The record shows that in threatening Murray with arrest, Local
324’s agents were not seeking to enforce the union bylaw, but rather
were acting in response to Murray’s protected dissident activities. In-
deed, at the time of the first threat, the union bylaw was not even
in existence. On two other occasions, Murray was threatened with
arrest at times when he was not engaging in conduct that violated
the bylaw.
20 365 U.S. 667 (1961).
21 365 U.S. 695 (1961).
the exercise of the rights guaranteed in section 7
. . . [among] which is the right to refrain from
any of the concerted activities described in that
section. We have previously held that Section
8(b)(1)(A) was not intended to give the Board
power to regulate internal union affairs, including
the imposition of disciplinary fines . . . against
members who violate the unions’ constitution and
bylaws.
Id. at 71–72 (citations omitted) (citing, inter alia, Sco-
field v. NLRB, supra).
The Boeing Court overruled contrary dicta in earlier
cases and held that the Board could not make such in-
quiries because ‘‘to the extent that the Board was re-
quired to examine into such questions as a union’s mo-
tivation for imposing a fine it would be delving into
internal union affairs in a manner in which we have
previously held Congress did not intend.’’17 Id. at 74.
Boeing’s clear message, then, is that ‘‘motivation’’ is
not a relevant consideration even if the Board does not
approve of it, unless Congress has chosen to regulate
the conduct involved.
Further, the Court has repeatedly and explicitly re-
lied in Boeing, Scofield, and subsequent cases on its
finding in Allis-Chalmers, supra, that
[w]hat legislative materials there are dealing with
Section 8(b)(1)(A) contain not a single word re-
ferring to the application of its prohibitions to tra-
ditional internal union discipline in general . . . .
On the contrary there are a number of assurances
by its sponsors that the section was not meant to
regulate the internal affairs of unions.18
In finding that the rule prohibiting solicitation and
distribution in Local 324’s business areas during busi-
ness hours fails to satisfy the first prong of the Scofield
test, then, the majority misapplies the Court’s language
and impermissibly expands Board authority under Sec-
tion 8(b)(1). The subject matter of the allegation in
Scofield—for which the Court devised the Scofield
test—was unambiguous: it plainly involved the lawful-
ness of a union fine. The rule itself, and the union’s
right to enact it or any other rule, was not at issue. Our
colleagues’ extension of the Scofield test to cover the
union’s enactment of a bylaw not facially unlawful,
then, finds no basis in Scofield and flies in the face of
settled precedent.
Thus, in acknowledging that Scofield is the starting
point for the analysis in this case, our colleagues have,
like the judge, recognized that enacting the bylaw was
an internal union action and must be analyzed under
Board law relating to internal union conduct not affect-
ing employment. They have, however, failed to ob-
serve the limits that Congress has placed on the
Board’s authority to intervene in such internal actions.
Their discussion of the Union’s motive for passing the
bylaw is irrelevant where the Board lacks the authority
to condemn the act resulting from the allegedly bad
motive as restraint or coercion. Therefore, regardless of
how regrettable the Union’s motive may have been,
when the Union has not engaged in conduct prohibited
by the NLRA, the Board is not empowered to find that
Section 8(b)(1)(A) has been violated. Thus, the allega-
tion relating to the bylaw is on a different footing from
the allegation relating to the threats. We agree with our
colleagues that the threats of arrest were coercive and
violated the Act.19
The majority’s view of 8(b)(1)(A) appears to be that
a showing of improper motivation for an internal union
rule is sufficient for a finding of a violation. In our
view, such a standard leads to precisely the type of
oversight of unions’ efforts to administer themselves
the Supreme Court condemned in Teamsters Local 357
v. NLRB20 and in NLRB v. News Syndicate Co.21 In
Teamsters Local 357, the Court rejected the Board’s
view that union hiring halls were inherently coercive
and that to operate one lawfully a union must include
assurances that its operation of the hall would be non-
discriminatory. In News Syndicate, the Court over-
turned the Board’s finding that a collective-bargaining
agreement providing that foremen be union members
595LABORERS LOCAL 324 (AGC OF CALIFORNIA)
22 News Syndicate, supra, 365 U.S. 699–700 (citations omitted).
23 248 NLRB 83 (1980), petition for review granted sub nom.
Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981).
24 See fn. 2, supra.
25 Thus, the majority overstates the case in finding that the rule
was passed to ‘‘silence’’ Murray. Although Murray’s lack of silence
was clearly the catalyst for the rule, the rule permitted him to con-
tinue to dissent—and to distribute—at other times and in other parts
of the facilities.
and have charge of hiring was unlawful as encouraging
membership in the union. The Court found that the
provision was not facially unlawful. In both cases, the
Court, in effect, called to the Board’s attention its
mandate from Congress to limit its interference into in-
ternal union affairs and to investigate and proscribe un-
lawful conduct, rather than to attempt to prescribe con-
duct by reading unlawful intent into facially lawful
language. In both cases the Court reaffirmed the fol-
lowing principle: ‘‘In the absence of provisions calling
explicitly for illegal conduct, the contract cannot be
held illegal because it failed affirmatively to disclaim
all illegal objectives.’’22
While this case deals with a local union bylaw rath-
er than with a contract provision, the lessons of Team-
sters Local 357 and News Syndicate are applicable
here. In all three of these cases the Board examined
and condemned union self-regulation in a way not con-
templated—indeed, expressly disavowed—by the fram-
ers of the Taft-Hartley Act and the Supreme Court.
Under the majority’s reasoning, all sorts of internal
conduct could become subject to Board oversight if al-
leged to retaliate against an employee for his/her exer-
cise of Section 7 rights or to chill the employee’s exer-
cise of those rights. Our colleagues’ holding in this
case so expands the Board’s power to police union in-
ternal affairs that any internal act, the motivation of
which does not pass muster, is a potential violation. In
our view, this assumption of authority not granted by
Congress is precisely what the Court repudiated in
Teamsters Local 357 and News Syndicate.
In further contrast to two of our colleagues in the
majority, we find convincing precedent in Teamsters
Local 515 (Roadway Express).23 There the Board, re-
versing the administrative law judge, dismissed allega-
tions that a union violated Section 8(b)(1)(A) by re-
moving dissident literature from a company-owned
bulletin board dedicated to union use, on which em-
ployees could post personal notices. The Board re-
jected the judge’s reliance on cases finding employers
to have violated Section 8(a)(1) by prohibiting posting
and distribution, observing that, while Section 8(a)(1)
prohibits interference, restraint, or coercion in the exer-
cise of Section 7 rights, Section 8(b)(1)(A) prohibits
only restraint and coercion. Noting that the charging
party, union member Helton, had other means of mak-
ing his message available to employees, the Board
found that Helton was not restrained or coerced in the
exercise of his rights and dismissed the complaint.
Members Stephens and Cohen find the union’s ac-
tion in Roadway Express ‘‘benign’’ by comparison to
the Union’s passing the bylaw here. We do not agree.
Local 324 has a legitimate and statutorily protected in-
terest in maintaining order in its hiring hall. As the
judge conceded, the LMRDA provides in Section
101(a)(2) that a member’s right of free speech is ‘‘sub-
ject to the organization’s established and reasonable
rules pertaining to the conduct of meetings.’’ In addi-
tion, the proviso to Section 101(a)(2) protects a
union’s right to ‘‘adopt and enforce reasonable rules
. . . [requiring members to] refrain[] from conduct that
would interfere with its performance of its legal or
contractual obligations’’—a category into which the
operation of a fair and reasonably efficient hiring hall
clearly falls.24 In Roadway Express, by contrast, the
union could not have been serving any ‘‘benign’’ pur-
pose whatever by removing only flyers critical of the
union from the union bulletin board, while leaving all
other member notes and communications in place.
Moreover, LMRDA Section 101(a)(2) explicitly per-
mits unions to require that members express them-
selves at appropriate times and in appropriate fora; it
clearly does not require a union to permit members to
commandeer any and every assembly for their own
purposes, even when those purposes are protected. In
Roadway Express, the union had, as a practical matter,
held the bulletin board out as a place where employees
could express personal views, so that the removal of
the dissident material demonstrated that all views were
permissible—as long as no dissent from union policies
was expressed. There is no practical justification for
permitting access to the bulletin board for any message
except ones critical of the union. In addition, Murray,
like Helton, had other means of making his message
known to Local 324’s membership. As the judge
noted, the rule here applies only to the hiring hall and
offices and not to distribution during meetings or in
other parts of the facility. As the rule permits Murray,
and any other member, to continue distribution at
meetings and other gatherings, Local 324 was plainly
not seeking to suppress all criticism, or even all criti-
cism from Murray himself.25
We find that just as the majority and the judge have
erred in holding that the Union’s passage of the bylaw
unlawfully violated Murray’s Section 7 rights, the ad-
ditional finding that the LMRDA’s guarantee of free
speech is the ‘‘overriding policy of the labor laws’’
vindicated by the finding of a Section 8(b)(1)(A) for
passing the bylaw is also erroneous, because the Su-
preme Court has held that absent formal discipline of
the member, no cause of action exists against a union
for violating the rights guaranteed by the free speech
guarantees of the LMRDA. In Breininger v. Sheet
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 493 U.S. 67 (1989).
27 Sec. 101(a)(5) prohibits unions from ‘‘fin[ing], suspen[ding],
expel[ling], or otherwise disciplin[ing]’’ members for exercising
rights guaranteed by the LMRDA. Id. at 90.
28 The union’s actions in Breininger are, arguably, violations of
Sec. 8(b)(1)(A). Breininger is distinguishable from this case in that
the Board is clearly empowered to find refusals to refer unlawful—
such refusals interfere with an employee’s employment status and
are not internal matters. The lesson Breininger teaches is that here,
when the Board can find no violation of an express prohibition of
the NLRA, it cannot find a basis for the violation in the LMRDA.
1 At the initial hearing, I rejected certain exhibits offered by the
General Counsel. Thereafter, upon reconsidering the arguments pre-
sented by the General Counsel at the hearing and in his brief, I re-
ceived these exhibits into evidence by Order Receiving Exhibits into
Evidence and Order Permitting Parties to Request Reopening of
Record, and/or Opportunity to Submit Briefs, dated October 11,
1990. Thereafter, I granted the Respondent’s Request to Reopen
Record.
Metal Workers Local 6,26 the Court held that under
LMRDA Section 101(a)(5),27 which prohibits union
discipline of a member for exercising the rights the
majority and judge purport to protect here, ‘‘dis-
cipline’’ means only actions taken under an ‘‘estab-
lished disciplinary process’’ such as a hearing followed
by a fine or other penalty, not ‘‘ad hoc retaliation by
individual union officers.’’ Accordingly, the Court dis-
missed allegations that union officials’ refusal to refer
a dissident employee through a hiring hall violated the
LMRDA.28 Thus, in this case the efforts of the judge
and the majority to champion free speech for union
members are misplaced under any applicable prece-
dent. In effect, no policy under the LMRDA has been
upheld by finding a violation here.
In our view, then, whether Murray’s rights are
viewed as originating in the LMRDA or Section 7,
under either analysis, the Union’s passage of the
bylaw, taken alone, does not violate the Act. We note
that the majority has not—and cannot—cite any prece-
dent to support its conclusion that the passage of a
bylaw that is not facially unlawful violates Section
8(b)(1)(A).
In finding that Local 324 violated Section 8(b)(1)(A)
by passing the rule, our colleagues assert that they
refuse to permit the Respondent to threaten employees
and to maintain an unlawful rule in violation of the
Section 7 and LMRDA rights of employees. We agree
with them that the Respondent’s threats were unlawful.
With respect to the passing of the bylaw, however, the
General Counsel has failed to allege and the majority
has failed to find any conduct that constitutes restraint
or coercion under Section 8(b)(1)(A). Further, the
‘‘overriding policy of the labor laws’’ to which the
judge and the majority refer does not warrant intruding
into the Union’s internal affairs.
We therefore respectfully dissent from the finding
that the Union violated Section 8(b)(1)(A) by passing
the bylaw at issue here.
Jeffrey Henze, Esq., for the General Counsel.
Victor Van Bourg, Sandra Benson, and Paul D. Supton,
Esqs. (Van Bourg, Weinberg, Roger & Rosenfeld), of San
Francisco, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, the initial hearing in this matter was held be-
fore me in Oakland, California, on August 23, 1990. There-
after, the record was reopened for the receipt of additional
documentary and testimonial evidence, which reopened hear-
ing was held on December 7, 1990.
The initial charge was filed on July 7, 1989, by Douglas
Murray, an individual. Thereafter, on August 31, 1989, the
Regional Director for Region 32 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of
hearing alleging a violation by Laborers’ Union Local No.
324, Laborers’ International Union of North America, AFL–
CIO (the Respondent) of Section 8(b)(1)(A) of the National
Labor Relations Act (the Act). Thereafter the complaint was
amended on several occasions, and on July 24, 1990, an
amendment to the amended complaint was issued by the Re-
gional Director.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the initial hearing
and reopened hearing, briefs have been received from coun-
sel for the General Counsel and counsel for the Respondent.
On the entire record,1 and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Associated General Contractors of California, Inc. (AGC),
is an organization comprised of employers in the building
and construction industry, and exists for the purpose of rep-
resenting its employer-members in negotiating and admin-
istering collective-bargaining agreements with various labor
organizations, including the Respondent herein. The em-
ployer-members of AGC, in the course and conduct of their
business operations, annually purchase and receive, in the ag-
gregate, goods and services valued in excess of $50,000 di-
rectly from sellers or suppliers located outside the State of
California, and are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. Lawson
Mechanical Contractors is an employer-member of AGC.
The Respondent is a constituent member of the Northern
California District Council of Laborers, an association com-
posed of various constituent labor organizations, which exists
for the purpose of representing such labor organizations in
dealing with employers, including AGC, with regard to labor
disputes and collective bargaining.
During all times material, the Respondent and Larson Me-
chanical Contractors, for whom the Charging Party herein
597LABORERS LOCAL 324 (AGC OF CALIFORNIA)
2 See, for example, Carpenters Local 316 (Bay Counties Contrac-
tors), 291 NLRB 504 (1988).
worked between June through August 1989, have been par-
ties to, and bound by, the terms of the Master Agreement be-
tween AGC and the Northern California District Council of
Laborers.
The Respondent maintains that the foregoing facts are in-
sufficient to establish jurisdiction over the Respondent, as it
has not been shown that the Charging Party’s work for
Lawson Mechanical Contractors was subject to the Master
Agreement or any other agreement between AGC and the
District Council of Laborers; and that it is possible that the
Charging Party’s work for Lawson Mechanical Contractors
was governed by some contract other than an AGC contract.
Thus, according to the Respondent, since the record contains
no jurisdictional evidence with regard to Lawson Mechanical
Contractors, as a single employer, the General Counsel has
failed to prove jurisdiction.
While it appears unnecessary to establish the Board’s ju-
risdiction over Lawson Mechanical Contractors as opposed to
jurisdiction over AGC or any of its constituent members as
a potential employer of the Charging Party, as in hiring hall
situations,2 I find that the evidence, detailed above, does es-
tablish such jurisdiction over Lawson Mechanical Contractors
as a constituent member of AGC. The Respondent’s mere
speculation that Lawson Mechanical Contractors may have
hired the Charging Party under some collective-bargaining
agreement other than an agreement between AGC and the
District Council is unaccompanied by any evidence whatso-
ever. Indeed, there has been no showing that Lawson Me-
chanical Contractors is a party to any other agreement.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Respondent is, and has been at all
times material, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether the
Respondent, by promulgating and maintaining a rule prohib-
iting all forms of solicitation and distribution of literature on
its premises, and by threatening a union member with arrest
and physical violence because of his distribution of certain
literature, has violated and is violating Section 8(b)(1)(A) of
the Act.
B. The Facts
Douglas Murray has been a member of the Respondent for
10 years and has obtained work through Respondent’s three
hiring halls located in Pittsburgh, Martinez, and Richmond,
California. During the last several years he has been an ac-
tive union member. He has attended and actively participated
in almost every monthly union meeting; he has continually
criticized local union leadership and, in this regard, has at-
tempted to secure the passage of various motions and resolu-
tions which he initiated; he has filed several prior unfair
labor practice charges against the Respondent and various
employers; and he recently has been an unsuccessful can-
didate for union office.
In conjunction with the foregoing activities, Murray has
edited and published a rank-and-file newsletter entitled the
‘‘Pick & Shovel.’’ Although it appears that several other
members of Respondent, including Murray’s wife, Melba
Clark, have assisted Murray in this endeavor, Murray is
clearly responsible for the contents of each edition of the
newsletter that bears his photo on the front page above the
heading, ‘‘Douglas Murray, Editor.’’ Insofar as the record
shows, the newsletter is published on an irregular basis, per-
haps every 2 to 6 months. It customarily consists of 8 to 10
pages, and is a compilation of articles written by Murray or
other union members, cartoons, poems, solicitations for
money and for free subscriptions, letters to the editor, and
other articles copied from other sources.
The newsletters contain labor-related matters in general,
but not solely, and includes considerable material dealing
with issues other than those directly related to the Respond-
ent. The contents of the newsletters include: a ‘‘Literature
List’’ of some 13 publications pertaining generally to democ-
racy within labor organizations, together with the purchase
price and address of the organization offering such publica-
tions for sale; an article describing at length ‘‘The Real
Value of the Union Steward-and the Steward Systems’’; a re-
production of a United Farm Workers of America handbill
urging support of the United Farm Workers in their cam-
paign to end the use of dangerous pesticides on table grapes;
a copy of a bulletin advertising various ‘‘labor studies’’
classes at local community colleges; articles on racing, sex-
ual harassment in the workplace, sexism, women’s rights,
poverty among women, slavery, and the homeless; and arti-
cles dealing with several infamous labor strikes during the
1880’s and 1890’s.
Each issue, however, also contains articles critical of the
Respondent’s elected and appointed officials and representa-
tives, and urges members to attend union meetings in order
to remedy the wrongs set forth in the newsletter. Such arti-
cles contain, for example, allegations that union officers and
representatives receive salaries, allowances, and expenses
(the amounts of which are specified) far in excess of their
value to the Union; and allegations that Respondent’s leaders
waste members’ money on expensive meals and trips, dis-
regard parliamentary procedure when it suits their purposes,
engage in the negotiation of sweetheart contracts, and permit
employers to disregard their contractual commitments, and
countenance dishonest hiring hall procedures.
Since about June 1988 Murray handed out copies of his
newsletter at the three aforementioned union hiring halls as
members were waiting for job referrals, at union meetings,
and at various job sites. In addition to the newsletter, he also
handed out other informational packets consisting of pam-
phlets published by the NLRB and the Department of Labor,
a pamphlet discussing parliamentary procedure, and leaflets
from the Association of Union Democracy. Further. Murray
has compiled a mailing list of some 200 union members, and
mails the newsletter to these individuals.
On ‘‘quite a few occasions,’’ according to Murray, he
would set out the above described material on a table at the
hiring hall, and would hand out copies of the material on re-
quest as members were congregated there while waiting for
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As a result of this testimony by Murray, I initially rejected the
issues of the newsletters, since the complaint alleges that the Re-
spondent unlawfully precluded Murray from disseminating ‘‘dis-
sident’’ material on June 23, 1989, and it appeared clear that Murray
could not identify the specific material he distributed on that date.
However, as noted above, I have since reconsidered my ruling and
have received the exhibits into evidence.
4 It appears, from reports contained in the various newsletters, that
Murray’s ejection from union meetings is not an uncommon occur-
rence.
5 Douglas Murray v. Laborers Union. Local 324, Case No. C 89-
4206 VWR.
job referrals. Apparently, there was no attempt to prevent
him from engaging in this activity until June 23, 1989.
On June 23, 1989, Murray spread out such material on a
table at the Martinez hiring hall. Murray was unable to speci-
fy the particular issue or issues of the newsletter he may
have had with him at that time, and testified that it could
have been any current or back issues which he happened to
have in his possession.3 While it appears that the most recent
issue of the newsletter which Murray had published prior to
that time was the January 1989 issue, Murray testified that
he did not know whether that was one of the issues he was
attempting to distribute on June 23, 1989.
Murray testified that as he was beginning to distribute his
literature on that day, the Respondent’s business manager
and secretary-treasurer, Charles Evans, approached him and
told him he would have to get the stuff off the table, and
that he wanted Murray out of the hall. Murray objected, told
Evans that if anyone wanted to play cards while waiting for
a job referral, which the evidence shows was a customary
occurrence during the operation of the hiring hall, they were
certainly welcome to share the table he was using, and re-
fused to leave. At this point Evans began to throw the mate-
rial into Murray’s briefcase without, according to Murray,
reading or looking at any of it. Some yelling, profanity and
pushing ensued. According to Murray, Evans said ‘‘I’m not
gonna fight you out here but if you come into the back
room, I’ll blow your head off.’’ Murray said, ‘‘Well, you’re
not the only one who can get a gun,’’ and that he would not
leave unless Evans called the police. Evans said that he had
already called the police. When the police officer arrived,
Evans said that he wanted Murray removed from the hall be-
cause he was passing out literature. Murray told the police
officer that he felt he was within his constitutional rights.
The police officer then asked Evans if there was any union
rule prohibiting the passing out of literature, and Evans said
no. That concluded the episode; the police officer left, Evans
returned to his office, and Murray continued handing out lit-
erature. According to Murray, there were about 20 union
members present at the time.
At the regular June 27, 1989 union meeting, 4 days later,
the membership passed the following rule which, since that
date, has been posted at each of the Union’s hiring halls:
NOTICE
During operating hours the offices & halls of Local 324
are to be used only for legitimate union business. No
person is permitted to use these premises for solicita-
tion for any cause nor for distribution of literature.
Murray was apparently ejected from the June 27 union
meeting for reasons unrelated to his passing out of lit-
erature,4 but retained outside the union hall talking to other
members as he passed out his material, including back issues
of the newsletter. When the meeting ended, business Agent
Jesse Duran approached Murray and said, ‘‘[W]ell, Dougie,
the next time you hand out literature you’re gonna be ar-
rested.’’
On August 2, 1989, Murray went to the Martinez hiring
hall. After roll call had ended he stood in Respondent’s park-
ing lot distributing, according to Murray, probably the
July/August issue of the newsletter together with a bumper
sticker reading ‘‘Put the ‘You’ in Union.’’ He also solicited
members for his newsletter mailing list. On this occasion
Business Agent Duran approached Murray and several other
members who were speaking with Murray, and said that he
was going to call the police if Murray didn’t leave. Murray
told him to go right ahead. Duran went back into the union
hall. Apparently the police were not called. Murray has con-
tinued to distribute his literature on the sidewalk and in the
parking lot at the various union halls.
Murray testified that since June 27, 1989 he has not
‘‘openly’’ distributed any literature inside the union halls as
a result of having been threatened with arrest and because of
the possibility that he would be brought up on internal union
charges for violating the posted notice. However, he dis-
cretely carries copies of the newsletter with him while he is
inside the union halls, and provides them to members.
In addition to filing the charge, which is the subject matter
of the instant complaint, Murray has filed an action under
Title 1 of the Labor Management Reporting and Disclosure
Act (LMRDA), which complaint is currently pending in the
United States district court for the Northern District of Cali-
fornia.5 Insofar as the record shows, Murray, in the LMRDA
suit, is contending that he ran for union election and was de-
feated as a result of his First Amendment rights having been
violated by the Respondent’s conduct in precluding him from
disseminating his newsletter and other materials within the
union halls. Thus, the district court proceeding, which is in
the deposition stage, appears to deal with the identical issue
presented herein, namely, whether the LMRDA prohibits the
promulgation and enforcement of the no no-distribution and
no-solicitation rule under foregoing circumstances and, ap-
parently, the additional circumstances associated with Mur-
ray’s unsuccessful bid for union office. The precise allega-
tions involved in the district court proceeding however are
not contained in the record herein.
There is no contention that the Respondent has interfered
with Murray’s right to obtain employment through the
Union’s hiring hall, or has otherwise attempted to interfere
with his employment.
Business Manager Evans testified that several members
complained to him that they objected to Murray passing out
literature in the hall, that ‘‘enough was enough,’’ and that
‘‘This guy is driving us crazy with it.’’ According to Evans,
the members just got tired of it, particularly as the union
election was over, and they wanted to know ‘‘Why all this
stuff, all this critical stuff, why is he still passing it out
now?’’ Evans did not testify that he or anyone else objected
to the specific contents of any of the newsletters. Thus, al-
though to a very limited degree some of the newsletters con-
tain profanity and verbal insults of a personal nature aimed
599LABORERS LOCAL 324 (AGC OF CALIFORNIA)
6 Sec. 101(a)(2) of the Labor-Management Reporting and Disclo-
sure Act of 1959, 73 Stat. 522, 29 U.S.C. Sec. 411(a)(2) provides:
Freedom of speech and assembly.—Every member of any
labor organization shall have the right to meet and assemble
freely with other members; and to express any views, arguments,
or opinions; and to express at meetings of the labor organization
his views, upon candidates in a election of the labor organiza-
tion or upon any business properly before tbe meeting, subject
to the organization’s established and reasonable rules pertaining
to the conduct of meetings: Provided, that nothing herein shall
be construed to impair the right of a labor organization to adopt
and enforce reasonable rules as to the responsibility of every
member toward the organization as an institution and to bis re-
fraining from conduct that would interfere with its performance
of its legal or contractual obligations.
at the Respondent’s representatives, Evans did not single out
such verbiage as providing the impetus for the adoption of
the no-solicitation and no-distribution rule.
Murray testified that at a union meeting in July, when
Murray, and apparently others, attempted to get the member-
ship to rescind the rule, Evans said, in justification for the
continued application of the rule, that such a rule was nec-
essary in order to prohibit adherents of the Ku Klux Klan or
the Black Panthers from distributing literature within the
union halls.
Analysis and Conclusions
The complaint alleges that the Respondent’s conduct, set
forth above, is in retaliation for Murray’s distribution of
‘‘dissident union literature.’’ and that Murray’s activities in
attempting to distribute such literature are protected by both
the Act and the Labor-Management Reporting and Disclosure
Act.6
In Carpenters Local 22 (Graziano Construction), 195
NLRB 1, 2 (1972), the Board found that the respondent
union violated Section 8(b)(1)(A) of the Act by citing and
find a union member for securing signatures on a petition in
protest of intra-union election irregularities. The Board set
forth its rationale as follows:
It is by now well settled that although Section
8(b)(1)(A) ‘‘leaves a union free to enforce a properly
adopted rule which reflects a legitimate union interest’’
and ‘‘impairs no policy Congress has imbedded in the
labor laws,’’1 it does not permit enforcement, by fine
or expulsion, of a rule which ‘‘invades or frustrates an
overriding policy of the labor laws. . . .’’2 Cases de-
cided to date, holding that union enforcement of a rule
by fining a member violates Section 8(b)(1)(A) of the
Act, have involved the protection of important policies
embodied in the Act itself, such as the right of employ-
ees to gain access to the processes of the Board to seek
to remedy union conduct violative of the Act, [footnote
omitted] or the right of employees who sought to ob-
serve contractual responsibilities to protection against
union efforts to punish them for refusing to breach such
responsibilities. [Footnote omitted.] The policies which
the Union’s conduct here seeks to frustrate are em-
bodied in the Labor Management Reporting and Disclo-
sure Act of 1959, rather than specifically in the Na-
tional Labor Relations Act. This difference does not,
however, impel a different conclusion.
As the above-quoted language from the Supreme
Court’s decision in Scofield implies, the Board is
charged with considering the full panoply of congres-
sional labor policies in determining the legality of a
union fine.5 Here the Union, in the guise of enforcing
internal discipline, has sought to deprive its members of
the right, as guaranteed by the Labor-Management Re-
porting and Disclosure Act, to participate fully and
freely in the internal affairs of his own union. A fine
for that purpose not only in our opinion fails to reflect
a legitimate union interest but rather in fact impairs a
policy that Congress has imbedded in the labor laws.
For these reasons, we conclude that the Respondent
Union’s conduct in fining Shanley because of his
intraunion activity violated Section 8(b)(1)(A) of the
Act.
1 Scofield v. NLRB, 394 U.S. 423, 430.
2 Id. at 429.
. . . .
5 Teamsters Local 663, a/w International Brotherhood of Teamsters,
etc. (Continental Oil Company), 193 NLRB [581 (1971)]. Cf. Southern
Steamship Company v. NLRB, 316 U.S. 31 [(1942)]; compare Local
1976, United Brotherhood of Carpenters etc. (Sand Door & Plywood
Co.) v. NLRB, 357 U.S. 93 [(1958)]. We are not unmindful of the fact
that the Department of Labor, and not this Agency, is directly charged
with the administration of the requirements of the Landrum-Griffin Act.
We traditionally respect this differentiation. See, e.g., Desert Palace.
Inc. d/b/a Caesar’s Palace, 194 NLRB [818], fn. 5 [(1972)]. In this
area, however, as we understand it, we have been specifically charged
by the Supreme Court with the duty of determining the overall legit-
imacy of union interests, and must therefore take into account all Fed-
eral policies and not limit ourselves to those embodied in our own Act.
In Operating Engineers Local 400 (Hilde Construction
Co.), 225 NLRB 596 (1976), the Board adopted the decision
of the administrative law judge who found that the respond-
ent union violated the act by disciplining union members for
conducting an ‘‘open discussion’’ meeting to question the
procedures used by the union in taking a strike vote, and to
voice their dissatisfaction with the outcome of the vote. The
administrative law judge, in finding a violation, stated, at
page 602:
Therefore, not only did no rule exist prohibiting Re-
spondent’s members from convening unofficial meet-
ings, but even had such a rule existed, Respondent’s
disciplinary action against the Charging Parties would
violate Section 8(b)(1)(A) both because it restrained
and coerced them in their Section 7 right to question
the wisdom of their representative and to pursue a
course designed to align their representative with their
position and, also, because it restrained and coerced
them in the exercise of rights guaranteed them by the
LMRDA.
In Machinists Local 707 (United Technologies), 276
NLRB 985 (1985), the Board adopted the decision of the ad-
ministrative law judge who found that the respondent union
violated Section 8(b)(1)(A) of the Act by processing internal
union charges against members because they promulgated a
leaflet criticizing certain local union incumbent officials prior
to an internal union election. The leaflet made references to
forgery, theft, and the use of narcotics by union officials, and
was distributed to members and nonmembers at plant gates.
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 248 NLRB 83 (1980).
8 The first proviso is as follows: ‘‘Provided, That any such mem-
ber may be required to exhaust reasonable hearing procedures (but
not to exceed a four-month lapse of time) within such organization,
before instituting legal or administrative proceedings against such or-
ganizations or any officer thereof. . . .’’
9 It should be noted that the finding of a violation herein would
not resolve a most significant issue in the district court proceeding,
namely whether the union election was tainted as a result of the ap-
plication of the no-solicitation and no-distribution rule.
In Operating Engineers Local 139 (AGC of Wisconsin),
273 NLRB 992 (1984), the Board found that the respondent
union violated Section 8(b)(1)(A) of the Act by, in addition
to other conduct, the bringing of internal union charges and
the imposition of a fine against a union member, because
such acts were committed in retaliation for the member’s
publishing of a dissident newspaper, ‘‘The Ethical Engi-
neer,’’ which contained articles critical of union officials.
The newspaper had apparently been published on an irregular
basis over a period of about 5 years and was distributed by
mail to union members.
In Morrissey v. Wall, 96 LRRM 2809 (S.D.N.Y. 1977),
the district court determined that the union violated the
LMRDA by adopting a rule similar to the rule adopted by
the Respondent herein, which prohibited ‘‘the distribution of
written material, other than official NMU publications or
written materials . . . inside the Union hiring hall or other
areas inside these premises where other Union business is
conducted.’’
In Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981), the
Court reversed the Board7 and found that the respondent
union violated Section 8(b)(1)(A) of tbe Act by removing
certain dissident union literature from the union’s in-plant
bulletin board, and by thereafter precluding the union mem-
ber from posting such literature, while at the same time per-
mitting employees to use the bulletin board for nonunion
business and for personal notices. The Court noted that even
if the union’s action was pursuant to a valid rule, the union
nevertheless violated the Act because its conduct failed to
satisfy the criteria set forth by the Supreme Court in Scofield,
supra. Thus, to summarize in part the findings of the Court
of Appeals, the removal of the material from the bulletin
board did not reflect a legitimate union interest as the ‘‘de-
sire to prevent controversy or to suppress criticism of union
leadership does not constitute a legitimate union interest’’;
and the union’s conduct impairs policies embedded in the
labor laws, including both Section 7 of the Act and also Sec-
tion 101(a)(2) of the LMRDA, which has been been inter-
preted to confer an ‘‘almost absolute’’ right of free speech
upon union members. Further, the Court noted that the exist-
ence of alternative means of communication with the mem-
bership was irrelevant, and ‘‘the simple fact that the union
has attempted to restrain an employee in the exercise of his
Section 7 rights is enough to justify a finding of a Section
8(b)(1)(A) violation.’’
The Respondent argues that under the provisions of the
LMRDA members are required to exhaust all internal union
remedies available to them under the union’s constitution
prior to bringing an action for a violation of the LMRDA.
In Operating Engineers Local 400, supra, the Board affirmed
the administrative law judge’s finding (at 605–606), that
‘‘the first proviso in LMRDA, Section 101(a)(4)8 cannot be
invoked to preclude the Board from considering a violation
predicated on LMRDA, Section 101(a)(2). Such a result has
been foreclosed in NLRB v. Industrial Union of Marine and
Ship Workers, 391 U.S. 418, 426 (1968). . . .’’
The Respondent also argues that the complaint should be
dismissed because Murray has elected to file a lawsuit in the
United States district court, which suit is now pending, con-
taining allegations that the Respondent has violated the
LMRDA by the identical conduct involved herein, and that,
under the circumstances, it is more appropriate for the Court
rather than the Board to determine whether the Respondent’s
conduct is violative of the LMRDA. The Respondent has not
cited any Board or court authority in support of its argument,
and even though the issues presented here may be resolved
in either forum,9 there appears to be no compelling reason
to require the Board to defer to the Court, as the Supreme
Court, in Scofield, supra, has conferred upon the Board, in
conjunction with its enforcement of the Act, the responsibil-
ity of determining whether union conduct impairs policies
Congress has imbedded in the labor laws.
The Respondent also argues that to invalidate the no-solic-
itation and no-distribution rule in this instance is tantamount
to requiring the Respondent to permit a member to distribute
any type of literature he or she desires to distribute, includ-
ing, for example, racist or religious material. In the instant
case, the evidence is clear that the rule was instituted in
order to preclude Murray from distributing dissident Material
critical of the Respondent’s leadership. That is the gravemen
of the complaint herein. Should, in the future, the Respond-
ent institute a rule which does not so restrict a member’s
rights under Section 7 of the Act and Section 101(a)(2) of
the LMRDA, such a rule would clearly constitute a valid ex-
ercise of the Respondent’s right to adopt reasonable rules
governing the conduct of its members.
The Respondent also maintains that the newsletters distrib-
uted by Murray contain an abundance of articles which are
clearly beyond the scope of the sanctions of the Act or the
LMRDA. Assuming arguendo that this is the case, and that
the Respondent would not run afoul of either statute if it
elected to prohibit the distribution of such material in its
halls, the evidence presented by the Respondent does not
show that the rule in question here was adopted for the pur-
pose of precluding the distribution of such material. Rather,
as Evans testified, the rule was adopted because certain
members became annoyed with Murray’s continuing dissemi-
nation of any literature subsequent to the election, regardless
of its content. Indeed, Evans’ testimony to the effect that the
rule only applied to the hiring hall operations of Respondent
and not to union meetings, at which time, according to
Evans, Murray and other union members were free to distrib-
ute whatever they wanted to, including the ‘‘Pick and Shov-
el’’ newsletter, demonstrates that the rule was not designed
to prohibit the dissemination of material which the Respond-
ent may be privileged to prohibit.
It is clear that the Respondent’s adoption of the rule did
inhibit Murray from exercising rights guaranteed by Section
7 of the Act and by the LMRDA. Further, there appears to
be no compelling reason to insulate Respondent’s hiring halls
from the exercise of such rights. Indeed, Respondent’s hiring
601LABORERS LOCAL 324 (AGC OF CALIFORNIA)
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
halls are a most effective location for members to present
dissident points of view. Based on the foregoing, I conclude
that the Respondent has violated Section 8(b)(1)(A) of the
Act as alleged by adopting the no-solicitation and no-dis-
tribution rule designed to preclude the distribution of dis-
sident union material; by threatening to have Murray arrested
and removed from the hiring hall in order to preclude him
from distributing dissident union material; and by threatening
to have him arrested if he continued to disseminate such ma-
terial outside the hiring hall.
CONCLUSIONS OF LAW
Associated General Contractors of California, Inc., and its
constituent members, including Lawson Mechanical Contrac-
tors, are now, and have been at all times material, employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
The Respondent has violated Section 8(b)(1)(A) of the act
by adopting a no-solicitation and no-distribution rule de-
signed to prohibit the dissemination of dissident union mate-
rial; by threatening a member with arrest and removal from
its hiring hall in order to preclude him from distributing such
dissident material; and by threatening him with arrest if he
continued to disseminate such material outside the hiring
hall.
THE REMEDY
Having found that the Respondent has violated the Act by
the adoption of its no-solicitation and no-distribution rule,
and by other conduct, the Respondent shall be required to re-
scind the rule, and to cease threatening members with arrest
for distributing dissident union material either inside or out-
side of its union hiring halls.
The Respondent shall also be required to post an appro-
priate notice attached hereto as ‘‘Appendix.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Laborers’ Union Local No. 324, Labor-
ers’ Union of North America, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Adopting and enforcing a no-solicitation and no-dis-
tribution rule which prohibits the dissemination of dissident
union material.
(b) Threatening the arrest of any union member for dis-
seminating dissident union material inside or outside of its
hiring halls or meeting places.
(c) In any like or related manner restraining and coercing
members in the exercise of rights guaranteed them in Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the no-solicitation and no-distribution rule
which has been in effect since June 27, 1989.
(b) Post at each of its facilities copies of the attached no-
tice marked ‘‘Appendix.’’11 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of The United States Government
WE WILL NOT enforce the no-solicitation and no-distribu-
tion rule which we adopted on June 27, 1989, and which
prohibits union members from distributing within our union
halls literature which criticizes the officers or representatives
of the union or which solicits support for opposing points of
view.
WE WILL NOT threaten to have union members arrested for
distributing such literature in or around our union halls.
WE WILL NOT in any like or related manner, restrain and
coerce our members in the exercise of rights guaranteed them
in Section 7 of the Act.
WE WILL rescind the no-solicitation and no-distribution
rule which we adopted on June 27, 1989, and remove the
posted rule from our union hiring halls.
LABORERS’ UNION LOCAL NO. 324, LABOR-
ERS’ INTERNATIONAL UNION OF NORTH
AMERICA, AFL–CIO